22 September 2007

A shop had a lot of customers' credit cards misused; there were unauthorised connections from the home IP address belonging to an employee of the financial systems support vendor...

This news article discusses an apparently bungled court case (it's not clear if it was civil or criminal) in the USA where important forensic evidence wasn't admitted or possibly even tendered. The interviewee blames the court, but I suspect that some blame must lie on the prosecuting attorneys in not having admissible evidence.

The article describes a situation which suggests that the police would have had little difficulty in obtaining a warrant and imaging the employee's PC. That would have been the critical evidence for both the prosecution and defence - yet it didn't make it into evidence.

The moral of the story for lawyers? Don't get involved in matters outside your area of expertise. Even using expert witnesses won't help you unless you ask the right questions, and without the requisite skills your expert witness will be worthless.

The bombshell web ban bill was tabled in the Senate at 9:58am, without prior notice.

Communications Minister Senator Helen Coonan proposes to expand the "black list" of internet addresses (URLs) currently maintained by the Australian Communications and Media Authority (ACMA) to include terrorism and cyber-crime sites.

Now, I agree that governments should be able to regulate material that incites criminal activity. However, I do not agree that legislation that permits this important function should be introduced into Parliament in this fashion. Removal of civil liberties is a very serious matter, and the text of legislation must be carefully examined and debated as seriously as any other matter of national significance. It is concerning that civil liberties laws seem to be regularly treated as something to be quickly dealt with the minimum of exposure to Parliament and the people.

It seems that the Federal Government changed the law this week in response to a pesky decision by the Supreme Court of Victoria which the government found inconvenient. Oh sure, Michael Brereton is a Victorian lawyer who's done nothing wrong, but the ACC feels it should be able to rifle his files anyway.

The slightly clownish "Justice" Minister David Johnston feels that normal process gets in the way of justice "his way." I guess that he really could have found something against Dr Haneef given a few years.

The current Liberal government is wondering why its performance in polls is so bad. Let me say that for thinking people that "it's time for a change" is not our reason. "Making bad law for exceptions" might be a popular one.

17 September 2007

So Roses Only had its credit card database compromised, although it won't admit it.

The company apparently knew that the breach had occurred, but did nothing to warn customers.

Roses Only is yet another company that seems to consider customers as their enemy, not their clients.

Yes, the company and banks are reimbursing their clients, but only after the anguish has occurred. It is a very unsettling thing to have your credit card used by others.

How pathetic are Roses Only and the banks? They could have canceled and reissued the cards before the fraud even occurred.

As a lawyer, if I treated my clients that way I would probably be on the receiving end of an inquiry by my professional standards body. Banks, on the other hand, often act as if they are accountable to no-one for customer service and couldn't care less about their customers.

It seems that Roses Only needs an audit of its IT systems, software and security. I wonder if it would supply the date of its last audit.

There is a push both overseas and here for internet traffic to be regulated (read: slowed or extra cost) depending on the traffic type. USA senators are regularly lobbied on this and occasionally speak out (albeit in an uninformed fashion). Since we can have a voice conversation with anyone on the Internet for 30 minutes that costs less than a cent worth of my monthly bandwidth, there is a clear financial threat to the telephone companies. Perhaps they'd like that traffic throttled or at extra cost? Again, if I can download movies over the Internet the traditional movie suppliers are threatened - they might become lobbyists for net non-neutrality. Or perhaps just the Internet backbone providers just want a bigger slice of the cake...

Convergence

Mobile phone charges in Australia are very profitable for the carriers. But consider this imaginary scenario: engin (www.engin.com.au) runs telephony over the Internet. I don't have a phone line to my house - I have Optus cable. I have an engin box to which I've connected my ordinary phone, and I have a normal phone number. All my phone calls go out magically via the Internet and Engin. Any call within Australia is 10 cents untimed (compared to 27 cents for an Optus local call), and mobile and overseas calls are very cheap too. Now, there's another innovative company named Unwired (www.unwired.com.au). Unwired offers high speed Internet access wirelessly in many metropolitan areas - you can move house and your modem just moves with you. You have a wireless modem at home and your household can all share it, or you can have an Unwired card in your laptop and roam around metropolitan areas. Unwired doesn't care where you are in its service area - you just get high speed internet. Because this is just an Internet link, all the usual Internet applications just work. So, let's say engin and Unwired make friends (because they have a common shareholder), and they produce a very simple phone handset that makes engin phone calls over the Unwired network. What do we get? A "mobile phone" network where each call is incredibly cheap (I trust) and doesn't involve the traditional mobile carriers. Of course, if net neutrality doesn't exist, the ISPs could damage this scenario, so net neutrality becomes critical.

Living in the cloud

Google has offered "services in the cloud" for some time. By this I mean that it offers email, word processing, spreadsheets and photo sharing all without having to install software on your own PC. Of course, there are many other excellent products such as SOHO Writer that do this. Microsoft, not to be left out, has released a beta of some interesting products that cross that boundary (http://get.live.com). Windows Live Writer is a lightweight wordprocessing program that gets downloaded to your PC, but allows you to write documents and save them to blogs. However, it's nothing like Google's offering, probably because of the conflict of interest in sellling Word on the one hand and offering free wordprocessing on the other.

Google phone

Google has announced that it may bid at least USD$4.6 billion for 700 MHz spectrum (currently used for analogue tv) in the USA (http://tinyurl.com/3c5fvo), and has urged the FCC to adopt very open policies in favour of the consumer. Australia and Europe have always been far ahead of the USA in mobile phones because we often buy unlocked phones - in the USA it's the opposite, and phone companies disable features such as bluetooth in case you use your phone in a way that they can't profit from. Anyway, 700 MHz penetrates buildings well, and can be used for data, tv or voice. See "Convergence" paragraph above...

As a Google/GMail user I tend to mainly use Google tools to do a lot of my writing. From Picasa I can write my blog with my photos; from Google Docs I can write my blog as well as normal documents.

For this post, however, I'm using an application that is a beta in the Windows Live suite. You can get Windows Live Writer from here, and I must say it's a very nice blog editor.

The biggest difference between Writer and the many other blogging tools I've tried is that it's like a little local wordprocessor - it is not dependant on being online. That's useful (not essential - ever heard of Wordpad or Notepad?) when you're not connected but still want to put thoughts down and format them ready for publication.

07 September 2007

It's good that our police are trained to wrap rubbish bins. A terrorist would be terribly defeated by that black plastic. Oh, and by the way Mr Scipione, you missed a bunch - you did one or two in Elizabeth Street, then had a big gap, then did a few more in Martin Place Plaza. But a few had the plastic ripped off so people could put rubbish in them.

John Watkins, a NSW government minister, was quoted as saying that it was appropriate for police to ask german backpackers to delete photos of the so-called APEC security fence. John, I'm in your electorate and I took a couple of dozen photos. Come and get me. Oh, and I've got some 640x480 30fps video too. And so does at least 3 dozen other people I saw in half an hour wandering the streets at lunch time on Thursday.

At last - a policeman finally approached me. The young child dressed as a policeman on the left asked me why I was taking photos and was I with the media?I replied that I was a solicitor.That seemed to set him back a bit. He asked again why I was taking photos. I replied that I liked police cars and bikes and wanted a photo - I'd never seen a purple car before. He replied "oh yeah, they're highway patrol cars" and wandered off. Lucky terrorists don't like cars and bikes...

I'm not sure, but he didn't seem to mind - I was 10 metres from him and walked past him when I took this photo. He was busy getting into his car, parked on the footpath in George Street, as the rain started. It looks like he's going for his pistol, but I think he was really getting his iPod out.

"United States President George Bush made one of his characteristic pronunciation bungles this morning welcoming business leaders to the "OPEC" meeting instead of the APEC meeting.

But with a dose of Texan charm Mr Bush grinned and said OPEC - which stands for Organisation of Petroleum Exporting Countries - was a meeting he is due to attend next year.

Later in his speech, Mr Bush recounted how Mr Howard had gone to visit "Austrian troops'' last year in Iraq. There are, in fact, no Austrian troops there. But Australia has about 1500 military personnel in and around the country."

03 September 2007

Bail is a mechanism to ensure that a person charged with an offence will eventually turn up at court to be tried. The bail court has to decide whether a person is likely to abscond, and if so, will either remand the accused in custody or impose conditions of bail so that the person remains free prior to trial.

Under section 31 of APEC Meeting (Police Powers) Act 2007 (NSW) the presumption of bail is removed if the alleged offence relates to violence against a police officer or malicious damage. Now, these are rather odd offences to pick on to remove a right to bail. It seems to me that it is either preventative detention or summary justice. In fact, I think it is both.

Of course both offences are are very unpleasant. A police officer should not be assaulted, and malicious damage is to be deplored. But why remove bail? The alleged offender should be taken before a magistrate and dealt with on his/her merits. That will include considering the likelihood of reoffending.

We have now, in NSW, a government who considers that the judiciary gets the law wrong, and the police get it right. That is a step towards removing the need for a judicial system. I'm not saying that we will end up at that point, but all journeys start with a beginning.

On 1 September the Sydney Morning Herald reported comments by the new Police Commissioner for NSW:

New NSW Police Commissioner Andrew Scipione has an "ideas blueprint" to change the force.

Mr Scipione assumes the top job on Saturday following the retirement of Ken Moroney.

The 49-year-old Mr Scipione has targeted bail rules that allow people to get away with committing crimes while on bail, News Ltd reports.

"Bail is one of the key issues for me. Bail and warrants," Mr Scipione said.

The next day (2 September 2007) the Sydney Morning Herald reported:

NSW Premier Morris Iemma says a review of bail laws to crack down on repeat offenders is a timely move.

NSW Attorney-General John Hatzistergos has launched a comprehensive review of the state's bail laws to address police concerns over the release of repeat offenders.

Among proposed changes being considered is granting the police powers to challenge bail determinations in a higher court, and allowing them to hold suspects for three days while seeking a review.

Currently such powers extend only to charges of murder or child sex offences.

These reports strongly support the argument that the government and police collectively consider that the courts get it wrong and the police get it right.

Where could this lead? It could result in a system where there is no or limited judicial review of bail, and no accountability by the police for their decisions. We can picture Scipione saying "we don't need no stinking courts for bail."

(I imagine that some of the impetus for all this is a recent case where a man was given bail after being charged with throwing a rock -which left a woman in a coma. I imagine he was given bail because he was not a flight risk - the magistrate considered that he would turn up to his trial. If that is the case, then bail was properly granted. He should not be imprisoned prior to trial simply because a woman was grievously injured - he hasn't been found guilty of the offence. However, if he is found guilty he will no doubt be imprisoned, and I will be glad.)

Again, I say these are early, faltering steps only down a slippery slope - but in a society where we see overreaction by authorities on many levels (pointy car keys are fine on an aeroplane, but not nail files) we will continue to see poor law being justified by the exceptions.

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),